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German Census 2011 Raises Privacy Concerns and Court Challenges

12 May 2011

This week, Germany started a new Volkszählung - the first count and registration of Germany's, its federal states' and communities' population since 1987.  The census 2011 has precititated  privacy concerns and legal challenges.

German Census 2011 Raises Privacy Concerns and Court Challenges

The census has its basis in the EU Regulation 763/2008, which provides that such census be conducted by the Member States in 2011, the Federal Census Act 2011 (Zensusgesetz 2011), and implementation laws enacted by the federal states.  Approximately one third of the people living in Germany are asked questions related to age, registered residence, nationality, relationships, education, employment, and residential property.  People that refuse to answer could forfeit monetary fines up to 1,500 Euro.  The data gathered shall be used for "important political and economical decisions", such as the re-calculation of the financial compensation scheme of Germany's federal states or of the distribution of seats in the Bundesrat (the representation of the federal states on the federal level).

The census 2011, however, is not undisputed.  Some people express concern about becoming a "gläserner Bürger", a transparent citizen, because of the state's collecting vast amounts of personal information.  Other concerns raised by data protection experts are about threats to the safety of the data, in particular caused by possible hacking attacks.  There would also be a risk of authorities sharing the collected data with other authorities that could combine the data with their own databases and use it in an unauthorized way  (e.g., to impose a fine upon a person who is, according to the findings of the census, not properly registered).  Data protection authorities argue that there would be no need for a census, because different authorities (such as the German Register of Residents)  already have enough data which could be used instead of the data collected during the census.  Also, the questions asked would not be proportionate in light of the purposes of the census.

For these reasons, the Federal Census Act 2011 was challenged before the Federal Constitutional Court, but the motion was dismissed for rather formal reasons.  The implementation law of the federal state of Berlin was challenged before the Berlin Constitutional Court this May 2011, inter alia, because the data collection would not be proportionate.

Indeed, Germany has a famous history of censuses and their challenges.  When the government set to count the German people in 1983, this caused a lot of uproar in the German population and was ultimately brought before the Federal Constitutional Court (Bundesverfassungsgericht).  The court handed-down its famous "Volkszählungs-Urteil", in which it acknowledged the "right to informational self-determination" (Recht auf informationelle Selbstbestimmung), i.e., the right of each individual "to decide upon the disclosure and use of his or her data".  This landmark decision can be seen as the very cornerstone of modern German, and possibly also European, data protection legislation.  The Federal Constitutional Court, moreover, set forth special requirements for conducting censuses, such as the need to anonymisation "as soon as possible" and to maintain confidentiality.

The Federal Census Act and its implementing laws contain provisions addressing the concerns against the census 2011 and the Federal Constitutional Court's stipulations in the Volkszählungs-Urteil.  For example, data need to be stored on systems with special firewall protection; the sharing of data with other authorities is prohibited; the data will be stored anonymously and deleted after specified periods.  Therefore, it is doubtful whether the Berlin challengers will have something to celebrate in 2011.  With the upset against the census 2011, at the same time, lacking the 1983-intensity, all seems to be going a rather smooth way towards a re-collected number of Germans.

 

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